CRS Annotated Constitution

Clause 7.
The President shall, at stated Times, receive for his
Services, a Compensation which shall neither be encreased
nor diminished during the Period for which he shall have
been elected, and he shall not receive within that Period
any other Emolument from the United States, or any of
them.

Clause 8.
Before he enter on the Execution of his Office, he
shall take the following Oath or Affirmation:—“I do
solemnly swear (or affirm) that I will faithfully execute
the Office of President of the United States, and will to
the best of my Ability, preserve, protect and defend the
Constitution of the United States.”

What is the time relationship between a President’s
assumption of office and his taking the oath? Apparently,
the former comes first, this answer appearing to be the
assumption of the language of the clause. The Second
Congress assumed that President Washington took office on
March 4, 1789,101 although he did not take the
oath until the following April 30.

That the oath the President is required to take might
be considered to add anything to the powers of the
President, because of his obligation to “preserve, protect
and defend the Constitution,” might appear to be rather a
fanciful idea. But in President Jackson’s message
announcing his veto of the act renewing the Bank of the
United States there is language which suggests that the
President has the right to refuse to enforce both statutes
and judicial decisions on his own independent decision
that they were unwarranted by the Constitution.102
The idea next turned up in a message by President Lincoln
justifying his suspension of the writ of habeas corpus
without obtaining congressional authorization.103
And counsel to President Johnson during his impeachment
trial adverted to the theory but only in passing.104
Beyond these isolated instances, it does not appear to be
seriously contended that the oath adds anything to the
President’s powers.

Section 2. Clause 1.
The President shall be Commander in Chief of the Army
and Navy of the United States, and of the Militia of the
several States, when called into the actual Serv[p.437]ice of the United States; he may require
the Opinion, in writing, of the principal Officer in each
of the executive Departments, upon any Subject relating to
the Duties of their respective Office, and he shall have
Power to grant Reprieves and Pardons for Offences against
the United States, except in Cases of Impeachment.

Surprisingly little discussion of the
Commander–in–Chief clause is found in the Convention or in
the ratifying debates. From the evidence available, it
appears that the Framers vested the duty in the President
because experience in the Continental Congress had
disclosed the inexpediency of vesting command in a group
and because the lesson of English history was that danger
lurked in vesting command in a person separate from the
responsible political leaders.105 But the
principal concern here is the nature of the power granted
by the clause.

The Limited
View.—The purely military aspects of the Commander–
in–Chiefship were those that were originally stressed.
Hamilton said the office “would amount to nothing more
than the supreme command and direction of the Military and
naval forces, as first general and admiral of the
confederacy.”106 Story wrote in his
Commentaries: “The propriety of admitting the president to
be commander in chief, so far as to give orders, and have
a general superintendency, was admitted. But it was urged,
that it would be dangerous to let him command in person,
without any restraint, as he might make a bad use of it.
The consent of both houses of Congress ought, therefore,
to be required, before he should take the actual command.
The answer then given was, that though the president
might, there was no necessity that he should, take the
com[p.438]mand in person; and there was
no probability that he would do so, except in
extraordinary emergencies, and when he was possessed of
superior military talents.”107 In 1850, Chief Justice
Taney, for the Court, said: “His duty and his power are
purely military. As commander–in– chief, he is authorized
to direct the movements of the naval and military forces
placed by law at his command, and to employ them in the
manner he may deem most effectual to harass and conquer
and subdue the enemy. He may invade the hostile country,
and subject it to the sovereignty and authority of the
United States. But his conquests do not enlarge the
boundaries of this Union, nor extend the operation of our
institutions and laws beyond the limits before assigned to
them by the legislative power.

“. . . But in the distribution of political power
between the great departments of government, there is such
a wide difference between the power conferred on the
President of the United States, and the authority and
sovereignty which belong to the English crown, that it
would be altogether unsafe to reason from any supposed
resemblance between them, either as regards conquest in
war, or any other subject where the rights and powers of
the executive arm of the government are brought into
question.”108 Even after the Civil War, a
powerful minority of the Court described the role of
President as Commander–in– Chief simply as “the command of
the forces and the conduct of campaigns.”109

The Prize
Cases.—The basis for a broader conception was laid in certain
early acts of Congress authorizing the President to employ
military force in the execution of the laws.110
In his famous message to Congress of July 4, 1861,111
Lincoln advanced the claim that the “war power” was his
for the purpose of suppressing rebellion, and in the Prize
Cases112 of 1863 a divided Court sustained this
theory. The immediate issue was the validity of the
blockade which the President, following the attack on Fort
Sumter, had proclaimed of the Southern ports.113
The argument was advanced that a blockade to be valid must
be an incident of a “public war” validly declared, and
that only Congress could, by virtue of its power “to
declare war,” constitutionally impart to a military
situa[p.439]tion this character and
scope. Speaking for the majority of the Court, Justice
Grier answered: “If a war be made by invasion of a foreign
nation, the President is not only authorized but bound to
resist force by force. He does not initiate the war, but
is bound to accept the challenge without waiting for any
special legislative authority. And whether the hostile
party be a foreign invader, or States organized in
rebellion, it is none the less a war, although the
declaration of it be ‘unilateral.’ Lord Stowell (1 Dodson,
247) observes, ‘It is not the less a war on that account,
for war may exist without a declaration on either side. It
is so laid down by the best writers of the law of nations.
A declaration of war by one country only is not a mere
challenge to be accepted or refused at pleasure by the
other.’

“The battles of Palo Alto and Resaca de la Palma had
been fought before the passage of the act of Congress of
May 13, 1846, which recognized ‘a state of war as existing
by the act of the Republic of Mexico.’ This act not only
provided for the future prosecution of the war, but was
itself a vindication and ratification of the Act of the
President in accepting the challenge without a previous
formal declaration of war by Congress.

“This greatest of civil wars was not gradually
developed by popular commotion, tumultuous assemblies, or
local unorganized insurrections. However long may have
been its previous conception, it nevertheless sprung forth
suddenly from the parent brain, a Minerva in the full
panoply of war. The President was bound to meet it in the
shape it presented itself, without waiting for Congress to
baptize it with a name; and no name given to it by him or
them could change the fact.

“. . . Whether the President in fulfilling his duties,
as Commander–in–Chief, in suppressing an insurrection, has
met with such armed hostile resistance, and a civil war of
such alarming proportions as will compel him to accord to
them the character of belligerents, is a question to be
decided by him, and this Court must be governed by the
decisions and acts of the political department of the
Government to which this power was entrusted. ‘He must
determine what degree of force the crisis demands.’ The
proclamation of blockade is itself official and conclusive
evidence to the Court that a state of war existed which
demanded and authorized a recourse to such a measure,
under the circumstances peculiar to the case.”114

Impact of the
Prize Cases on World Wars I and II.—In brief, the powers claimable for the President under
the Com[p.440]mander–in–Chief clause at a
time of wide–spread insurrection were equated with his
powers under the clause at a time when the United States
is engaged in a formally declared foreign war.115
And since Lincoln performed various acts especially in the
early months of the Civil War which, like increasing the
Army and Navy, admittedly fell within the constitutional
provinces of Congress, it seems to have been assumed
during World War I and II that the Commander–in–Chiefship
carried with it the power to exercise like powers
practically at discretion, not merely in wartime but even
at a time when war became a strong possibility. No
attention was given the fact that Lincoln had asked
Congress to ratify and confirm his acts, which Congress
promptly did,116 with the exception of his
suspension of the habeas corpus privilege which was
regarded by many as attributable to the President in the
situation then existing, by virtue of his duty to take
care that the laws be faithfully executed.117
Nor was this the only respect in which war or the approach
of war was deemed to operate to enlarge the scope of power
claimable by the President as Commander–in–Chief in
wartime.118

Footnotes

100
Cf.
13 Atty.
Gen.161 (1869), holding that a specific
tax by the United States upon the salary of an officer,
to be deducted from the amount which otherwise would by
law be payable as such salary, is a diminution of the
compensation to be paid to him which, in the case of the
President, would be unconstitutional if the act of
Congress levying the tax was passed during his official
term.

102
2 J. Richardson, op. cit., n.42, 576. Chief Justice
Taney, who as a member of Jackson’s Cabinet had drafted
the message, later repudiated this possible reading of
the message. 2 C. Warren, The Supreme Court in United
States History (New York: 1926), 223–224.

105
May, The President Shall Be Commander in Chief, in
E. May (ed.), The Ultimate Decision—The President as
Commander in Chief (New York: 1960), 1. In the Virginia
ratifying convention, Madison, replying to Patrick
Henry’s objection that danger lurked in giving the
President control of the military, said: “Would the
honorable member say that the sword ought to be put in
the hands of the representatives of the people, or in
other hands independent of the government altogether?” 3
J. Elliot, The Debates in the Several State Conventions
on the Adoption of the Federal Constitution (Washington:
1836), 393. In the North Carolina convention, Iredell
said: “From the nature of the thing, the command of
armies ought to be delegated to one person only. The
secrecy, dispatch, and decision, which are necessary in
military operations can only be expected from one
person.” 4 id., 107.

1101 Stat. 424
(1795):
2 Stat. 443
(1807), now
10 U.S.C.
§§ 331
–334. See also Martin v. Mott, 12 Wheat. (25
U.S.) 19, 32– 33 (1827), asserting the finality of the
President’s judgment of the existence of a state of
facts requiring his exercise of the powers conferred by
the act of 1795.

118
E.g., Attorney General Biddle’s justification of
seizure of a plant during World War II: “As Chief
Executive and as Commander–in– Chief of the Army and
Navy, the President possesses an aggregate of powers
that are derived from the Constitution and from various
statutes enacted by the Congress for the purpose of
carrying on the war. . . . In time of war when the
existence of the nation is at stake, this aggregate of
powers includes authority to take reasonable steps to
prevent nation– wide labor disturbances that threaten to
interfere seriously with the conduct of the war. The
fact that the initial impact of these disturbances is on
the production or distribution of essential civilian
goods is not a reason for denying the Chief Executive
and the Commander– in–Chief of the Army and Navy the
power to take steps to protect the nation’s war effort.”
40 Ops. Atty. Gen. 312, 319–320 (1944). Prior to the
actual beginning of hostilities, Attorney General
Jackson asserted the same justification upon seizure of
an aviation plant. E. Corwin, Total War and the
Constitution (New York: 1946), 47–48.